land appeal no

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND APPEAL NO. 217041 OF 2024 (Originating From Application No. 42/2021, Mkuranga District Land and Housing Tribunal) SALUM MKUMBA............... APPELLANT VERSUS ELIZABETH CHACHA.......................... ....1st RESPONDENT MAS AM BE JAMES MWIKWABE.................................................... 2nd RESPONDENT JUDGMENT 15th to 18th October, 2024 E.B. LUVANDA, J At the Tribunal the Appellant sued at his personal capacity claiming against the First and Second Respondent for trespassing his land of three acres located at Tamani Village/Ward within Mkuranga District. At the hearing, the Appellant who testified as PW1 tendered a special power of attorney exhibit Pl indicating thatTumu S. Mkumba who is the guardian of Thureiya S. Mkumba (minor) and Fatma S. Mkumba (minor) appointed the Appellant to be their attorney to prosecute the application pending at the Tribunal. PW1 also tendered a sale agreement dated 31/10/2009 exhibit P2 vindicating that Tumu S. Mkumba, Fatuma S. Mkumba and Thureiya S. Mkumba purchased three acres of land from Fatuma Muhando for a consideration of TZS 1,000,000/=. i At the verdict the learned Chairperson ruled that so far the Appellant is claiming the suit land which according to exhibit P2 was purchased by Tumu S. Mkumba, Fatuma S. Mkumba and Thureiya S. Mkumba who in 2009 were minors, the Appellant's claim was legally unmaintainable. In the memorandum of appeal, the Appellant raised three grounds of appeal: One, the trial Tribunal erred in law and facts by not considering the evidence tendered by the Appellant; Two, the trial Tribunal erred in law and facts for considering fabricated sale agreement tendered by the Respondent; Three, the trial Tribunal erred in law and facts by not considering that the Appellant is a biological father of the minors (owners) to the disputed land. The Appellant for ground number one, submitted that the he (Appellant) paraded four witnesses who testified that he is the true owner on behalf of his children and the Respondents are trespassers to the suit land. He submitted that he instituted his claim to the said suit land through special power of attorney from his daughters. He submitted that the contract tendered prove ownership of the disputed land, and mention buyers who are daughters of the Appellant who signed on their behalf. He cited section 11(1) and (2) of the Law of Contract Act, Cap 345 of 2019. He submitted that it is true that the minor is incompetent to sign contract, but argued that the Appellant considered it that is why he signed the said contract on their behalf when they are minor. 2 For ground number two, the Appellant submitted that the Tribunal accepted into evidence the sale agreement by the Respondent who's the hamlet leader disowned a signature appearing therein. He submitted that the decision of the Tribunal based on the competence of a contract tendered by the Appellant only without considering the evidence tendered by the other side. For ground number three, the Appellant submitted that the sale agreement mentioned the daughters of the Appellant who did not sign the contract, argued it was signed by the Appellant who is their biological father on their behalf, for an argument that his children were minor. In reply, Ms. Pasensa Dickson Kurubone learned Counsel for Respondent submitted that exhibit P2 shows clearly that purchasers are Tumu S. Mkumba, Fatuma S. Mkumba and Thureiya S. Mkumba, argued nothing to show that the Appellant signed on behalf of the purchasers or purchased on their behalf. She submitted that the thumbs print is different and that there is no proof if the Appellant signed by thumb print. She submitted that nowhere the Appellant stated that the suit land belongs to those children. She submitted that the Appellant wrote in a sale agreement to reflect Salum Mkumba na familia citing annexure Pl attached to the application, argued that the said version is missing in exhibit P2, only contain names of Tumu S. Mkumba, Fatuma S. Mkumba and Thureiya S. Mkumba. 3